In a path breaking development, the Supreme Court held that a trial judge could record evidence of witnesses staying abroad through video conferencing.

Interpreting Section 273 of the Criminal Procedure Code in the light of technological advancements, a bench comprising Justice S N Variava and Justice B N Agrawal said recording of evidence through video conferencing would be perfectly legal.

The judgment relates to a case in which a US-based doctor had opined against operation of a cancer patient through video conferencing. Ignoring the advice, two Indian doctors operated on the lady, who later passed away.

The patient's family went to court against the doctors. However, the US-based doctor, Ernest Greenberg, refused to come to India, but expressed willingness to give evidence through video conferencing.

But the Bombay high court did not allow the trial court to go ahead citing Section 273, which lays down the procedure for recording evidence.

The husband of the deceased, P C Singhi and the Maharashtra government had appealed against the high court order in the Supreme Court.

The prosecution has alleged that the two Indian doctors -- Praful B Desai and A K Mukherjee -- did not take good care of the patient after the operation as a result of which she suffered a lot before her death.

Speaking for the bench, Justice Variava said, "In cases where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience, the court could consider issuing a commission to record evidence by way of video conferencing."

"Normally a commission would involve recording of evidence at the place where the witness is. However, advancement in science and technology has now made it possible to record such evidence by way of video conferencing in the town/city where the court is," he said.

Referring to the chances of witness abusing the trial judge during video conferencing, the apex court said, "As a matter of prudence, evidence by video-conferencing in open court should be accepted only if the witness is in a country which has an extradition treaty and under whose laws contempt of court and perjury are punishable."

The court then directed the Mumbai court to set up a commission and take help of VSNL in recording Dr Greenberg's statement through video conferencing in the presence of the two accused doctors. It also allowed the two accused to cross-examine the US-based doctor.

The court directed the Maharashtra government to bear the cost of video conferencing.

Rejecting all arguments about inferior video quality, disruption of link and other technical problems, the bench said by now science and technology has progressed enough to not worry about video image/audio interruptions or disruptions.

The counsel for the two doctors argued that the rights of the accused under Article 21 could not be subjected to a procedure involving 'virtual reality'.

Rejecting the argument, the bench said video conferencing has nothing to do with virtual reality and gave the example of the telecast of the cricket World Cup.

It could not be said that those who watched the World Cup on television were witnessing virtual reality as they were not in the stadium where the match was taking place, the court pointed out.

"This is not virtual reality, it is actual reality. Video conferencing is an advancement of science and technology which permits one to see, hear and talk with someone far away with the same facility as if he is present before you, that is, in your presence," the apex court said.

"Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the accused," it said.